Opinion
6 Div. 241.
November 1, 1927. Rehearing Denied November 15, 1927.
Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.
Action by S. G. Deason against the Alpine Coal Company. Plaintiff takes a nonsuit, and appeals from an adverse ruling on the pleading, refusing permission to amend the complaint. Affirmed.
Curtis, Pennington Pou, of Jasper, for appellant.
Where the plaintiff sues an entity and describes it as a corporation, he may amend his complaint and correctly describe the entity sued. Manistee Mill Co. v. Hobdy, 165 Ala. 411, 51 So. 871, 138 Am. St. Rep. 73; Ala. Power Co. v. Hamilton, 201 Ala. 66, 77 So. 356; Key v. Goodall-Brown, 7 Ala. App. 227, 60 So. 986; King Land Co. v. Bowen, 7 Ala. App. 462, 61 So. 22; First Nat. Bank v. Gobey, 152 Ala. 517, 44 So. 535; Lewis Lbr. Co. v. Camody, 137 Ala. 578, 35 So. 126; North Birmingham L. Co. v. Simms, 157 Ala. 595. 48 So. 84; Birmingham Iron Co. v. Hood, 19 Ala. App. 6, 94 So. 835.
R. A. Cooner, of Jasper, for appellee.
Brief did not reach the Reporter.
But one question is involved upon this appeal, the several assignments of error are of the same import.
The record discloses that plaintiff (appellant) filed a complaint against "Alpine Coal Company, a corporation," on January 16, 1926. On October 19, 1926, the Alpine Coal Company filed a sworn plea of nul tiel corporation. The cause was called for trial on January 6, 1927, whereupon the plaintiff undertook and offered to amend his complaint, the effect of said proposed amendment was to strike from the complaint the "Alpine Coal Company, a corporation," and to add in lieu thereof "James L. Gallacher, doing business as Alpine Coal Company, defendant." The court sustained defendant's objection to the filing of said amendment and refused to permit same, whereupon the plaintiff took a nonsuit with bill of exceptions. Judgment was rendered accordingly, and from this adverse ruling this appeal was taken.
The statute of amendment (section 9513 of the Code), though extremely liberal in its provisions, does not contemplate an amendment authorizing an entire change of parties. Rarden Mercantile Co. v. Whiteside. 145 Ala. 617, 39 So. 576. We are of the opinion that the amendment here offered was of that character and if allowed would have wrought an entire change of party defendant. The trial court took this view and correctly so. The court's rulings in this connection were without error. This being the only point of decision upon the appeal, the cause is affirmed.
Affirmed.